Ray v. Connell
| Citation | 2016 MT 95,383 Mont. 221,371 P.3d 391 |
| Decision Date | 26 April 2016 |
| Docket Number | No. DA 15–0543.,DA 15–0543. |
| Parties | Jerry T. RAY, Plaintiff and Appellant, v. Martin R. CONNELL, Defendant and Appellee. |
| Court | United States State Supreme Court of Montana |
For Appellant: Jack R. Stone, Attorney at Law, Lewistown, Montana.
For Appellee: Brian L. Taylor, Jaclyn S. Laferriere, Hall & Evans, LLC, Billings, Montana.
delivered the Opinion of the Court.
¶ 1 Jerry Ray (Ray) appeals from an order and memorandum entered by the Thirteenth Judicial District Court, Yellowstone County, granting Martin Connell's (Connell) two motions for partial summary judgment and renewed motion for summary judgment. We affirm.
¶ 2 Ray presents the following dispositive issues for review:
¶ 3 Ray and Connell are both real estate agents. Ray and Connell each own land in the East Billings Urban Revitalization District (EBURD). EBURD is a zoning district in the industrial area of Billings, which has adopted a master plan and code (EBURD Code) to regulate development and renewal in the area. Property owners within EBURD also make up a non-profit organization called the Billings Industrial Revitalization District (BIRD). BIRD advocates for development within EBURD. Connell is president of BIRD. In May 2013, Ray requested two variances from the EBURD Code in order to develop property he owns located within the district. The Board of Adjustments denied one variance request and granted the other. BIRD and several landowners appealed the granted variance. Ray appealed the denied variance. The EBURD Code and the outcome of Ray's two variance requests generated contention between Ray and Connell. Connell is a proponent of the EBURD Code and Ray is a vocal opponent.
¶ 4 Ray wrote a letter to the Billings City Council asking the Council to rescind or modify the EBURD Code. The Billings City Council held a meeting on October 7, 2013, and discussed the EBURD Code. According to that meeting's transcript, Connell addressed the Council and commented on Ray's petition to rescind or modify the EBURD Code. Connell said, “I sent [the City Council] a letter last week kind of outlining the Jerry T. Ray situation.” Connell continued,
¶ 5 At another Billings City Council meeting, held on January 6, 2014, the minutes reflect that Ray addressed the Council and said he wanted to talk about the first two phases of EBURD in which he owned property. He advocated for rezoning the EBURD back to “Controlled Industrial” because the EBURD Code is too stringent, complying with it is too expensive, and its provisions discourage development. The minutes show that Connell later spoke and called himself “public enemy # 1 [to Ray's] petition.” Connell accused Ray of making misrepresentations and invited Ray to follow city procedures and buy the required permits. Connell said Ray's criticisms of the EBURD Code were “just simply not true.” The minutes show Connell said “if they held a hearing with sworn testimony, it would be found that what Mr. Ray had told Council was not true.” Finally, the minutes indicate Connell accused Ray of having ex-parte communication with all of the Board of Adjustments members prior to their ruling on his variance requests and giving them factually incorrect information to influence their decision. Connell admitted he was not at the Board of Adjustments meeting when Ray's requests were considered because Ray “had turned his name into the Board of Realty for malpractice.” As a result, Connell “had to go before the Board of Realty, who dismissed the complaint with prejudice.” Connell concluded, “The bottom line was there were seven criteria to grant a variance, and Mr. Ray only qualified for one—a parking lot; but the board granted it.”
¶ 6 Ray filed suit against Connell alleging Connell's comments during these two meetings constituted defamation of his character. Additionally, Ray accused Connell of telling Ronquillo, a Billings City Councilman, that Ray had stolen gates from Connell's business, Pierce Packing, and was keeping them at his residence. This accusation, Ray argued, also constituted defamation and Ray accused Ronquillo of spreading the rumor. On April 24, 2014, Ronquillo signed an affidavit in which he attested Connell told him that Ray stole gates from Connell's business and had them at his home. In the affidavit, Ronquillo attested Connell's statement about Ray stealing gates was “defamation of Jerry T. Ray's character” and “this untrue statement could cause Jerry T. Ray financial harm as Jerry is a Realtor and the truth is paramount in the real estate profession.” Later, during a deposition taken on March 12, 2015, Ronquillo testified that he did not read the affidavit fully before signing it, saying, “I probably didn't read the whole doggone thing, which is my fault,” and did not recognize the document until his signature was pointed out. During his deposition, Ronquillo contradicted many of the statements in his affidavit. He testified he believed that Connell's statement about Ray stealing gates was a joke, not defamation. Ronquillo testified that he conveyed Connell's story only to Ray and that he did not believe the accusation could cause Ray financial harm because he had not told anyone else.
¶ 7 Ray claimed punitive damages, general damages based on a lost real estate commission, costs, attorney fees and expenses for defamation. Ray claimed that he lost a real estate commission because Donald Janich, a ranch-owner, heard Connell's comments while watching a Billings City Council meeting on television and, afterwards, decided not to allow Ray to list his ranch. Donald Janich's ranch later sold, which, according to Ray's third amended complaint, resulted in damages totaling “$82,500.00 in lost commission from a real estate transaction less any costs of split commission with Donald R. Janich.” Ray included an additional claim in his second amended complaint: Ray claimed that Connell's same allegedly-defamatory conduct entitled him to an unidentified amount of damages for tortious interference with business interests. Ray included an additional claim in his third amended complaint for $400,000 in general damages for mental anguish and suffering.
¶ 8 On August 10, 2015, after considering the briefs, pleadings, and papers on file and arguments of counsel, the District Court granted Connell's two motions for partial summary judgment and renewed motion for summary judgment. The District Court held that: 1) the absolute privilege of § 27–1–804(2), MCA
, applied to the statements Connell made at the Billings City Council meetings and protected them from constituting defamation; 2) Connell's statement to Ronquillo was not defamation because, according to Ronquillo's deposition, which is controlling, it was a joke; and 3) Connell was entitled to summary judgment on Ray's claims of tortious interference and mental anguish damages because the underlying conduct for those claims was the same conduct that the Court determined was not defamatory and entitled Connell to summary judgment. Ray appeals.
¶ 9 We review summary judgment orders de novo, performing the same analysis as the district court. Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 36, 345 Mont. 12, 192 P.3d 186
(citation omitted). Summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3).
¶ 10 1. Did the District Court err in granting Connell summary judgment on Ray's defamation claim based on a conversation between Connell and Ronquillo?
¶ 11 Ray claims Connell defamed him by communicating an accusation of theft to Ronquillo. Defamation is effected by libel or slander. Section 27–1–801, MCA
. “Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation that exposes any person to hatred, contempt, ridicule, or obloquy or causes a person to be shunned or avoided or that has a tendency to injure a person in the person's occupation.” Section 27–1–802, MCA
. “Slander is a false and unprivileged publication other than libel that: 1) charges any person with crime ...” or “3) tends directly to injure a person in respect to the person's ... business, either by imputing to the person general disqualification in those respects that the office or other occupation peculiarly requires or by imputing something with reference to the person's office, profession, trade, or business that has a natural tendency to lessen its profit....” Section 27–1–803, MCA. For defamatory words to be actionable, they McConkey v. Flathead Elec. Coop., 2005 MT 334, ¶ 45, 330 Mont. 48, 125 P.3d 1121 (citing Wainman v....
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